February 22, 2018

It’s always nice to be quoted in The Wall Street Journal, especially when the author is the perennially sharp-eyed editor Leslie Scism. Yesterday, she posted an interesting article on a recent lawsuit against MetLife that involves a problem with the payment streams from one of its structured settlement annuities.

Leslie has covered structured settlements for The Journal for years and it was a pleasure to provide her with background on the structured settlement industry, which issued about $5.6 billion in annuities in 2017.

Here’s Leslie’s article and she was kind enough to quote me midway down:

When Nicole Herivaux was born at Coney Island Hospital in New York in 1980, doctors made a mistake that left one of her arms useless.

Ms. Herivaux’s family sued and reached a settlement on the infant’s behalf. It provided $2,200-a-month in lifetime income paid out by an insurance firm, and lump sums of as much as $200,000 were sprinkled in to help, say, with college costs.

November 1, 2015

David Gialanella at The New Jersey Law Journal has been writing about structured settlements recently, specifically the recent decision by Atlantic County Superior Court Judge Nelson Johnson (at left) in In re T. Keena, Transfer of Structured Settlement Proceeds to Peachtree Settlement Funding, which was approved for publication September 29.

Gianella’s latest, “NJ Opinion Makes Waves in Structured Settlement Industry,” which quotes me multiple times, is an insightful explanation of the complexities surrounding structured settlement transfers. These transfers, which have been regulated for the past 14 years through Section 5891 of the federal tax code, have become an integral part of the structured settlement industry.

Multiple structured settlement consultants have told me that Section 5891’s rules on transfers are a standard part of their marketing tactics. In particular, they discuss these rules with plaintiffs who express hesitancy about structuring part of a settlement.

The real issue, which all parties to this legislation understood when it was passed, is that the primary market has a crucial financial interest in ensuring that transfers remain viable for those in need. But everyone also accepted that federal legislation could not possibly micromanage financial decisions by accident victims.

So the agreed-upon solution was to kick the issue to judges and give them vague guidance about what constituted grounds for approval.

Incidentally, it‘s also worth noting that the line between the primary and secondary structured settlement industries has become more porous since approval of the 2001 federal law. Economic realities are driving greater cooperation among companies in the respective marketplaces.

Well done, David Gianella. Here’s hoping that you keep following this issue.

December 1, 2014

It’s always an honor to be quoted in the media, especially when the author is a well-known legal columnist.

Attorney Dennis Beaver writes a legal advice column, “You & the Law.” This week, he discussed structured settlements’ role in helping accident victims protect their long-term financial security. His column, “How to keep ‘friends’ away from settlement money,” was an excellent overview about the perils of accepting a large lump-sum cash settlement to resolve a physical injury or wrongful death claim.

As Beaver notes, “In a structured settlement, instead of receiving a single, lump sum payment, part or all of the money is used to obtain an insurance annuity which provides a guaranteed, long-term stream of tax-free income payments tailored to the accident victim’s specific needs….” He adds, “Most people are not good at managing large amounts of money suddenly received.”

Here’s an excerpt:

“Start giving in, and Ben moves from target to financial victim,” according to Peter Arnold, a longtime structured settlement consultant and former Deputy Executive Director of the structured settlement industry’s trade association. “It’s like throwing a raw steak into the ocean when you know that sharks are there.”

“Often, the temptation to share this sudden wealth overrides better judgment about saving it for the future. A structured settlement is like putting a German Shepherd in front of your money to make sure efforts to grab and spend it easily fail, and allows you to honestly state, ‘I would love to loan you money, but it is beyond my reach,’ he points out.

You can read the full column on the Hartford Sentinel’s website here. (To Peter Swinehart, my excellent Landon School English teacher from the 1980s, you have my apologies for the mixed dog and shark metaphors.)

Also, it’s great to see Dennis quote my longtime friend, Derek Sells, Managing Partner at The Cochran Firm in New York. Derek and I were in the same class at Dartmouth and he’s a top-notch, widely respected attorney.

September 4, 2014

On the Friday before Labor Day (read: the government either wanted to bury it or someone was in a pre-holiday rush to clear out old business), the Internal Revenue Service (IRS) releasedPrivate Letter Ruling 143928-13, dated April 14, 2014 and authored by Mike Montemurro, Chief, Branch 4 at the IRS’ Office of the Associate Chief Counsel (Income tax & Accounting). Montemurro’s letter, apparently requested by Pacific Life, approved favorable tax treatment for a structured settlement annuity with annual payment adjustments based on the S&P 500 Index performance. The letter also included the possibility of a commutation pursuant to a Notice of Hardship.

Not surprisingly, this PLR touched a nerve among the structured settlement industry’s commentariat. The industry’s ever-tenacious Watchdog offered insights here and former NSSTA President Pat Hindert suggested a “game-changing” aspect to the commutation language here.

A few years ago, Montemurro himself spoke at a NSSTA meeting about structures and the secondary market and his comments that day presaged his language in the new PLR. Under gentle questioning from Drinker Biddle’s estimable Mike Miller about the assignability of periodic payments, Montemurro replied, in part:

We went through this before [Section] 5891 came into effect. The assignment companies were concerned that if they had these factoring transactions, it could blow up the old [Section] 130 deal.

Certainly the transaction has to be valid under state law. It’s always an assumption that the transaction is going to be enforceable under state law. And one thing we always assume in these rulings too is that these things are ‘sales’ of the periodic payments because there’s another way you could phrase these things and that is that they’re secured loans, where you’d end up with a different answer.

It’s actually important for state law because these [transactions] can be for usurious rates and that causes problems.

We’re very careful to make sure that it has to be an enforceable obligation under state law. We always assume in these transactions that taxpayers are treating them as sales, not as loans [although the IRS] won’t rule on whether it’s a sale or a loan [because] it becomes very difficult to make the distinction.

In short, Montemurro offered a pretty clear recognition of Section 5891’s acceptance of structured settlement sales. In subsequent comments that day, he reaffirmed the IRS’ approval in concept of these transfers, subject to IRC rules. Hence, Montemurro’s PLR, while important, doesn’t strike me as going significantly further than he did in that NSSTA presentation.

Incidentally, if anyone is interested in Montemurro’s comments on this or other topics – for example, non-qualified assignments and single-claimant 468(b) – let me know.

P.S.: To anyone in PacLife’s management who’s reading this, You have the best life company team in the structured settlement industry.

The most interesting feedback (aside from a couple of seriously intriguing PDFs sent anonymously) involved my contention of a coming integration of the structured settlement’s primary and secondary/factoring markets. That trend, which actually has already begun, has huge implications for any future lobbying effort because it directly affects Congress’ perception that the primary and secondary markets are separate and distinct.

Most who reached out either denied this trend (no, really) or minimized it. Sorry but they’re both wrong.

To understand what’s driving this change, start with a remarkable speech that Chartis’ (now AIG) President of Claims Rick Woollams delivered at NSSTA’s 2012 fall convention. A self-described supporter of structures, Woollams nevertheless predicted that by 2017, “The entity count represented by [NSSTA’s members] will probably be two-thirds of what it is now.”

By 2022, Woollams predicted that the number would be half of 2017’s figure.

Today, with industry production down almost 20% from 2008, the consolidation that Woollams predicted is underway. During the past year, Brant Hickey merged with Pension, Integrated Financial snapped up JMW Settlements and the James Street Group disappeared (Rest in peace, James).

Given this consolidation, no one should be surprised that the primary market (yes, individuals AND companies) is angling for new revenue and efficiencies from the factoring industry. Structure consultants who work with accident victims are building professional arrangements with secondary companies, referring accident victims wishing to sell payment rights in exchange for finder’s fees.

At last month’s Capital Hill session on structured settlements, Mark Perriello, president of the American Association of People with Disabilities, spoke passionately about his support of the primary market and objections to the secondary market. Shelly Buxenbaum from the office of Rep. Matt Cartwright, sponsor of legislation to change Section 5891, also spoke of the two as separate industries.

But Congress and AAPD (among others) must accept that this distinction is increasingly outdated and doesn’t reflect the growing business links between the consultants who work with accident survivors and the secondary market.

Coming after Labor Day: How primary and secondary market companies can integrate operations under a single streamlined management. And the truth is that, if done correctly, this will benefit structured settlement beneficiaries as they will gain all its advantages while also having ready access to liquidate some or all of their payments when necessary.

July 24, 2014

Yesterday morning, the American Association of People with Disabilities and the National Consumer Leagueheld a panel discussion on Capitol Hill about problems that structured settlement beneficiaries can encounter when selling future payment rights. It was an interesting discussion and may presage heightened federal attention to the structured settlement industry in general and settlement purchasing specifically.

As usual when discussing structures, context is important: In recent years, the structured settlement marketplace has seen a drop in production. This has created an economic dynamic that’s pushing broker companies and purchasing companies toward a single merged industry.

Industry watchdog John Darer recently reported that a structured settlement provider company has purportedly entered into a formal arrangement with a settlement purchasing company to sell “contacts and/or other nonpublic information.”

NSSTA Board member Randy Dyerof Ringler Associates told me last November that he’d picked up a heightened amount of industry chatter about settlement purchasing companies angling to purchase broker operations.

Yesterday’s panelists were AAPD President Mark Perriello, Shelly Buxenbaum, legislative assistant to Rep. Matt Cartwright and NSSTA member Marty Jacobson. Perriello began by noting that on average, about 5,000-6,000 people each year sell their rights to future payments and therefore settlement purchasing “is critical for us to look at.”

Both he and Ms. Buxenbaum indicated upfront that settlement purchasing had value for accident victims in certain circumstances. “It probably needs to remain a perfectly legal practice,” said Perriello.

Ms. Buxenbaum went further, saying, “We want factoring to remain legal.” She later added that an example of a legitimate reason for a beneficiary to sell future payment rights might be to pay down a student loan.

Still, both Perriello and Ms. Buxenbaum spent most of their time urging Congress to strengthen federal oversight of settlement transfers. Perriello added that AAPD had expressed concerns about settlement purchasing to the Consumer Financial Protection Bureau.

Marty Jacobson, for whom I have tremendous respect, echoed the other speakers’ comments by cautioning against “too much regulation” on settlement purchasing, even as he encouraged passage of Rep. Cartwright’s bill.

Much more went on, including Marty describing why a New York judge describes the current regulatory framework for payment rights transfers provided by Section 5891 of the federal tax code as a “rubber stamp.”

I plan to write more about the event but for now, a few thoughts:

If NSSTA and the primary market push for new federal regulations on settlement purchasing, they could be in for a rude awakening. Capitol Hill history is littered with examples of companies that start a lobbying effort to put competitors under a regulatory yoke only to see themselves put in regulators’ crosshairs.

Look at Google, which tried to saddle Internet service providers with online “neutrality” regulations and quickly found itself in trouble at the FTC for its privacy policies.

Regulators looking at structured settlements are unlikely to respect arbitrary lines between “primary” and “secondary” market activities – especially as the two markets merge. Some in the primary market may believe that a “bright line” exists between the primary and secondary markets but don’t expect Federal regulators to believe it. Also, it’s just not true. Pat Hindert has been exceptionally keen on documenting this point. If Congress starts probing transfer fees, it’s likely also to focus on the primary market’s standard 4% annuity commission.

Boon for plaintiff brokers? If Congress believes that annuitants don’t have structures designed to meet their needs, it’s likely to focus on efforts to facilitate plaintiffs’ access to structure consultants. There was a brief discussion yesterday morning of Rep. Brian Higgins’ bill to encourage exactly that.

Trouble for Liberty, AIG & life insurance companies? In 2010, Hartford paid $74 million to settle claims that it defrauded thousands of structured settlement annuitants who did not have the benefit of a plaintiff broker. Other life insurance companies (Liberty, AIG and others) may have had internal policies similar to those of Hartford. It’s a near-certainty that if Congress probes settlement transfers, it will also look at how life insurance companies have conducted themselves in disclosing fees.

There’s a lot more to write but this is a blog, not War &and Peace. More to come in due course. If anyone wants the recording of yesterday’s session, let me know.

UPDATE: The esteemed structured settlement consultant Dan Finn of Finn Financial Group informs me that there is no ampersand in the title of Tolstoy’s epic. Apologies to Dan and to Leo.

August 7, 2013

It’s always a pleasure and usually a bit humbling to be cited favorably in a news article. Claims Journaljust posted a long article about the legal and insurance dynamics during the 1970s and early 1980s that resulted in Congress passing legislation to recognize and encourage the use of structured settlements. Titled “The Beginnings of Structured Settlements,” the article’s author is Claims Journal editor Denise Johnson, an attorney and respected commentator on insurance. I am cited twice, in my capacity as a consultant to the National Structured Settlements Trade Association (NSSTA).

For anyone who has been physically injured in an accident, the structured settlement offers unmatched advantages including the opportunity to design a stream of guaranteed payments to meet future medical and living needs. Moreover, per the federal tax code, all income is completely exempt from federal and state taxes.

As U.S. Rep. Jim Langevin (RI), the only quadriplegic ever to serve in Congress, states in the article:

I always take the opportunity to educate my colleagues on the benefits of structured settlements to injured victims. These settlements ensure that victims have enough funds not only to pay their bills today, but also in the future. They provide economic security not found in a normal legal settlement.

More information about structured settlements is available at the NSSTA website or by clicking here.